Information Note on the Court’s case-law 191

December 2015

Nzapali v. the Netherlands (dec.) - 6107/07

Decision 17.11.2015 [Section III]

Article 3

Degrading punishment

Degrading treatment

Inhuman punishment

Inhuman treatment

Imposition of exclusion order rendering failed asylum-seeker who could not return home liable to prosecution for overstaying: inadmissible

Facts – The applicant, a national of the Democrat ic Republic of the Congo and former high-ranking member of the military fled what was then still Zaire following the overthrow of the Mobutu regime in 1997. He and members of his family applied for asylum in the Netherlands, but his application was rejecte d under Article 1F of the 1951 Geneva Convention relating to the Status of Refugees , as amended, on the grounds that he had been guilty of torture in Zaire. However, he was not expelled as the Netherland s authorities accepted that he faced a real risk of ill-treatment in the event of a return. In April 2004 he was convicted of torture by a Netherlands court and in September 2004 the Minister for Immigration and Integration issued an exclusion order on pub lic-order grounds. After serving his sentence the applicant remained in the Netherlands. He was subsequently rearrested and convicted under Article 197 of the Criminal Code of staying in the Netherlands while aware that he was subject to an exclusion order . He was given a two-month suspended prison sentence. In upholding that conviction and sentence after the case was remitted to it by the Supreme Court, the court of appeal noted that the applicant had been at fault for staying in the Netherlands illegally as he had not made proper efforts to leave the country. In 2008 the applicant received a Belgian residence permit.

In the Convention proceedings, the applicant complained, inter alia , that subjecting him to an exclusion order which caused him to commit a c riminal offence simply by being in the Netherlands in a situation where he was unable to travel to any other country had amounted to inhuman or degrading treatment or punishment, contrary to Article 3 of the Convention.

Law – Article 3: Subjecting a person who could not be returned to his or her country of origin to an exclusion order did not, by itself and without more, constitute treatment or punishment contrary to Article 3, even if the person’s continued stay in the country concerned in defiance of the exclusion order rendered him or her liable to criminal prosecution and conviction. However, an issue under Article 3 could arise if several sets of criminal proceedings were brought against a person subject to an exclusion order and/or if, despite making r easonable efforts to find a third country prepared to admit him or her, that person continued to face the risk of an interminable series of prosecutions and criminal convictions and was helpless to prevent such a predicament.

Between his being made subject to an exclusion order in September 2004 and his relocation to Belgium in 2008, criminal proceedings had been instituted against the applicant just once. Although he was convicted of the offence of being in the Netherlands while subject to an exclusion ord er, the sentence was suspended. The reasoning of the domestic courts strongly suggested that a suspended sentence was imposed in recognition of the difficult situation in which the applicant found himself and that the applicant might not have been found cr iminally liable had he made certain efforts to comply with his obligation to leave the Netherlands. Accordingly, and while account had thus been taken of the applicant’s particular situation, it also appeared that he had been in a position to affect the ou tcome of the criminal proceedings.

The treatment complained had thus not attained the requisite level of severity to engage Article 3.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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